Why Acquired Brain Injury Matters in Dispute Resolution: A Call to Action for Mediators and Complaints Managers
- Shiv Martin
- Apr 10
- 5 min read
Updated: Apr 28
Table of Contents
Why Mediators and Complaints Managers Need to Know About ABI
Understanding the Challenges ABI Presents
Misidentification
Overrepresentation in Legal Systems
Barriers to Legal Participation and Rehabilitation
What is Acquired Brain Injury?
Acquired Brain Injury (ABI) refers to any damage to the brain that occurs after birth. This includes traumatic injuries (e.g., car accidents, falls) and non-traumatic causes (e.g., strokes, infections, oxygen deprivation). ABI can lead to wide-ranging cognitive, emotional, and behavioural changes—many of which directly impact a person’s ability to engage in formal processes like mediation, complaints handling, or legal hearings.
Why Mediators and Complaints Managers Need to Know About ABI
As frontline professionals dealing with conflict, fairness, and procedural integrity, we must be attuned to the hidden disabilities that can shape behaviour, comprehension, and decision-making. ABI is one such condition—often misunderstood and rarely accommodated.
If a person struggles with memory, attention, communication, or emotional regulation, and we don’t adjust our approach accordingly, we risk misinterpreting their behaviour or unintentionally excluding them from fair participation.
Understanding the Challenges ABI Presents Misidentification and Misunderstanding
Individuals with ABI may present with confusion, poor impulse control, or slurred speech—symptoms easily mistaken for intoxication or non-compliance. Studies like Lansdell et al. (2018) show that such misidentification often results in punitive rather than supportive responses. This is particularly problematic in complaints or mediation settings, where assumptions about credibility or cooperation can shape how we handle a case.
Overrepresentation in Legal Systems
Research highlights a disproportionate number of people with ABI in prisons and detention centres. Saunders et al. (2024) and Brown & Kelly (2012) link this to a lack of early support, inadequate training among justice professionals, and systemic service gaps. If the system isn’t built for neurodivergent participation, it inadvertently becomes exclusionary.
Barriers to Legal Participation and Rehabilitation
ABI can make it hard to understand legal documents, participate meaningfully in interviews or mediations, or recall important dates and facts. Chan et al. (2023) and Atkinson et al. (2019) note the shortage of services tailored to ABI-specific cognitive and emotional challenges—leading to poor outcomes and repeated system contact.
Stigma and Systemic Discrimination
Negative assumptions about cognitive ability often influence whether someone is seen as credible, responsible, or deserving of support. As Lin (2024) and Durham & Ramcharan (2018) suggest, framing ABI solely as a medical issue may reinforce exclusion rather than inclusion. A shift to person-centred, rights-based responses is overdue.
The Science Behind ABI
ABI affects various brain regions, depending on the cause and severity of the injury. Executive functioning—our ability to plan, prioritise, and regulate behaviour—is often impaired. Memory (particularly working memory), impulse control, and processing speed may also be affected.
Neuroscience research shows that brain injury can disrupt the neural pathways that mediate emotional regulation and social cognition. This means a person with ABI might struggle to:
Read social cues
Understand abstract concepts
Stay focused in high-stress or complex conversations
Recall previous agreements or events accurately
Pacik et al. (2022) emphasise that these cognitive changes are not signs of disinterest, dishonesty, or resistance—but real neurological effects requiring accommodation.
Practical Steps for Mediators and Complaints Handlers
If you work in mediation, complaints resolution, or any front-facing justice-related role, here are five steps you can take:
Adjust your assumptions. Pause before interpreting behaviours like frustration, forgetfulness, or avoidance as intentional. Consider whether a cognitive impairment like ABI may be involved.
Ask, don’t assume. Where appropriate, ask if the person has any support needs or finds certain processes difficult to follow. Use plain language and provide written materials in easy-to-read formats.
Simplify processes. Break complex steps into smaller chunks. Offer time to process information. Consider using visual aids or checklists.
Work with support services. Disability advocates, legal aid professionals, or support workers can bridge communication gaps and help ensure a fair process.
Reflect on systemic fairness. Think about how your organisation identifies and accommodates people with hidden disabilities. Are your intake, case management, and review processes inclusive?
Why This Matters to Me
A growing and important part of my mediation and training practice includes ongoing research (as part of postgraduate studies) in the field of psychology. I'm especially interested in how to design and implement dispute resolution processes that truly engage with the complexities of the human brain. I know that there are some conflict cases that feel impossible to navigate. These include cases involving ABI survivors. What my research and my experience indicate is that this is a space that is often misunderstood and mislabeled. There are no easy solutions, but awareness is certainly the first step.
If you want to continue this conversation please come along to my next free online webinar on Creating a Conflict-Resilient Workplace
❓ Frequently Asked Questions (FAQ)
How can I tell if someone has ABI?
You often can’t. ABI is an invisible disability. Be alert to signs like difficulty following instructions, inconsistencies in memory, or unusual emotional reactions—but avoid diagnosis. Instead, adopt a flexible, supportive approach that works for a variety of neurodiverse needs.
Should I ask someone directly if they have ABI?
Only if relevant, respectful, and necessary to support participation. A better approach is to ask open-ended questions like, “Is there anything we can do to help you participate more comfortably today?”
What if someone appears aggressive or disengaged?
Consider whether cognitive overload, frustration, or processing delays are playing a role. De-escalation strategies and trauma-informed communication can help keep conversations safe and constructive.
Is this really my responsibility as a mediator or complaints handler?
Yes. Procedural fairness and accessibility are core to your role. Understanding how ABI affects engagement ensures you can adapt your practice to meet the needs of all participants—especially the most vulnerable.
Can dispute resolution systems be made more accessible overall?
Yes—with better training, better intake processes, and a commitment to universal design principles in complaints handling and mediation.
Want to Build More Inclusive Dispute Resolution Processes?
I offer:
Specialist workshops for complaints handlers and mediators
Conflict coaching with a neurodiversity lens
Consulting on accessible dispute resolution practices
Book a free confidential discovery call to explore how we can build a better system together.
References
Atkinson, J. et al. (2019). Understanding the Legal Needs of People with ABI in Alaska.
Brown, M., & Kelly, G. (2012). Disability and the Criminal Justice System.
Chan, S. et al. (2023). Rehabilitation for Traumatic Brain Injury in Legal Contexts: A Scoping Review.
Durham, J., & Ramcharan, P. (2018). Social Construction of Cognitive Disability and Justice.
Lansdell, S. et al. (2018). The Experiences of People with ABI in the Victorian Criminal Justice System.
Lin, E. (2024). Systemic Discrimination and Disability in the Law.
Moore, D. et al. (2019). Legal Capacity, ABI, and Access to Justice.
Pacik, D. et al. (2022). Navigating Legal Systems with Cognitive Impairment.
Saunders, R. et al. (2024). ABI and Overrepresentation in the Criminal Justice System.
Read Next
Shiv Martin is a nationally accredited mediator, practicing solicitor, conciliator, decision-maker, and certified vocational trainer. With extensive experience in complex dispute resolution, stakeholder engagement, and team building across business, community, and governmental sectors, Shiv brings over a decade of unique and diverse expertise in Law, Management, Vocational Education, and Mediation.
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